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Will Adultery Affect Child Custody?

By Christopher Coble, Esq. | Last updated on

For the most part, divorce courts don't treat cheating spouses like they used to. With the rise of no-fault divorce options, whether one spouse had an extramarital affair generally doesn't come into play in divorce cases.

But what about when children are involved? Could courts and judges take adultery into account when making child custody decisions?

Written Law

While state laws can vary, almost every court is legally bound to decide custody issues in the child's best interests. This means a judge or mediator will be focused on fostering and encouraging the child's happiness, security, mental health, and emotional development. Some factors that are used to determine a child's best interests include the child's wishes, the mental and physical wellbeing of the parents, and the desire to maintain a stable home environment.

Generally speaking, whether one parent committed adultery before the divorce will not be an explicit factor in making child custody decisions. While a few states still allow judges to award more money to the non-cheating spouse in divorce, the interest in creating a custody agreement in the child's best interests will normally override any evidence of adultery.

Unwritten Rules

Just because there is no statute that forces judges to take affairs into account during custody cases, it is nevertheless possible that adultery could have an implicit impact on custody decisions. Judges, mediators, and lawyers negotiating custody agreements are humans, not robots, and knowledge of a cheating spouse could create a subconscious bias that comes through in custody decisions. Even if a judge is directed not to take adultery into account, or doesn't even think she is, she may be less inclined to make decisions favorable to the adulterer spouse.

An affair could also have an effect on custody if it is ongoing and likely to continue after the divorce. In making decisions in the child's best interests, a judge could take into account where and with whom the child will be spending his or her time. Not that this is necessarily a negative factor, but the person with whom the spouse was cheating could have a secondary impact on custody rulings.

Child custody decisions can be complex legal decisions made in an emotionally-charged environment. Contact an experienced divorce attorney to help you get the best custody arrangement for you and your child.

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